Re Martin's Application

This matter concerned an application by Mr Martin for leave to issue a summons in the High Court. The application arose after a Justice had previously directed that the Registrar refuse to issue such a summons without leave. The dispute involved the applicant and a company in liquidation, with the underlying subject matter relating to a home the applicant and his wife had built and occupied for many years. The applicant had also raised complaints regarding his treatment, including the cost of filing fees for documents that were not returned before the Court.

The legal issues before the Court were whether the proposed summons clearly lacked merit or was futile, and what principles governed the grant of leave in such circumstances, particularly in light of the history of previous litigation and the nature of the relief sought. The Court was required to consider the purpose of the provisions in Order 58 rule 4(3) of the High Court Rules, which allow for a Justice to direct that a summons not be issued without leave.

Kirby J, hearing the application ex parte as the respondents chose not to attend, noted the tortuous history of the litigation between the parties, referencing previous decisions of the Federal Court and prior unsuccessful applications for special leave to appeal to the High Court. His Honour observed that the litigation was a "mess" and that the applicant had approached the High Court for special leave on six previous occasions, each time unsuccessfully. Applying the principles for granting leave, which require the proposed summons to have some merit and not be clearly meritless or futile, Kirby J found that the applicant had not demonstrated that the relief sought in the summons had any prospect of success.

The application for leave to issue the summons was refused.